2010 (12) TMI 537 - AT - Central Excise

Waiver of pre-deposit - cenvat credit - Goods send to job work - contention of the revenue that the clearances of tubes made by the applicant to the job worker cannot be under the job worker provisions but under the provisions of clearance of input as such i.e., Rule 3(5) wherein the applicant has availed the benefit of Rule 4(5)(a) - Rule 4(5)(a) of the Cenvat Credit Rules, 2004 reproduced that input as such can be sent for manufacture of intermediate goods, which are necessary for manufacture of final products, and it is not in dispute that the intermediate product i.e., oil cooler, heat exchanger were used/consumed by the applicant in his factory premises for manufacture of oil lubricating systems - If that be so, it cannot be pressed upon the assessee by the revenue to resort to only the provisions of Rule 3(5) and direct them to reverse cenvat credit - Hence, applicant has made out a prima facie case for waiver of pre-deposit of the amounts involved - Decided in favour of assessee.

Summary

Issues:
- Demand of reversal of credit under Section 11A and interest thereon
- Penalty under Section 11AC

Analysis:
1. Demand of Reversal of Credit and Interest Thereon:
The appellant sought a waiver of pre-deposit concerning the demand for the reversal of credit amounting to Rs. 2,35,324 under Section 11A, along with the associated interest. The dispute arose from the contention that the appellant availed ineligible cenvat credit on tubes sent to a job worker for further manufacturing, resulting in the receipt of oil cooler and heat exchanger back from the job worker. The revenue argued that the clearances of tubes should fall under the provisions of clearance of input as per Rule 3(5) and not job worker provisions, invoking Rule 4(5)(a). However, after thorough consideration of submissions and records, it was established that the tubes sent for job work were in compliance with Rule 4(5)(a) of the Cenvat Credit Rules, allowing the appellant to send inputs for the manufacture of intermediate goods necessary for final products. As the intermediate products were used by the appellant in their factory for manufacturing oil lubricating systems, it was deemed unjust for the revenue to insist on reversing cenvat credit under Rule 3(5). Consequently, the appellant successfully made a prima facie case for the waiver of pre-deposit related to this issue.

2. Penalty under Section 11AC:
The second issue pertained to the penalty of Rs. 2,35,324 under Section 11AC. The appellant's case for waiver of this penalty was intertwined with the primary issue of reversal of credit. Since the appellant demonstrated a prima facie case for the waiver of the demand for reversal of credit, it logically followed that the associated penalty under Section 11AC should also be stayed until the appeal's final disposal. The tribunal found merit in the appellant's arguments and granted the stay on the recovery of the penalty amount pending the appeal's resolution.

In conclusion, the appellate tribunal, after a detailed examination of the facts and legal provisions, granted the appellant's request for a stay on the demand for reversal of credit and associated penalty until the appeal's final adjudication. The judgment highlighted the importance of adhering to the relevant rules governing the availing of cenvat credit and emphasized the need for a prima facie case to justify a waiver of pre-deposit amounts.